This past week, the Office for Civil Rights (OCR) issued an interim guidance document on campus sexual misconduct in advance of final rule making on schools’ responsibilities under Title IX to respond to sexual misconduct complaints. The document is in Q&A form and may be found here.
Most significantly changed from previous guidance is the addition of a new evidentiary standard that schools can apply in determining whether campus sexual misconduct has occurred. Schools may now choose to apply either “preponderance of the evidence” or “clear and convincing evidence” in making that determination. Schools must, however, be consistent in which standard is used from case to case.
Also of note is that under the new interim guidance, schools can choose to offer an appeal to either both parties or to only the respondent. Previously schools had to offer an equal appeal opportunity to both parties.
Finally, the Department of Education rescinded its 2011 OCR Dear Colleague Letter and 2014 Questions and Answers guidance. The new interim guidance document pointed out that schools are still bound under any existing voluntary OCR resolution agreements entered into prior to the rescission.